Sweden: Supreme Court refuses to rule on treatment’s impact on HIV risk even as a second Court of Appeal judgement recognises latest science

Last week, Sweden’s Supreme Court announced that it would not grant leave to appeal in a case where the prosecution had appealed an acquittal from Court of Appeal regarding a man living with HIV, on successful antiretroviral therapy, who had unprotected sex with several women none of whom were infected.  Instead, it cited its 2004 ruling stating that only sex with a condom can prevent a prosecution for ‘HIV exposure’ (as reckless endangerment).

The Swedish Prosecutor’s office notes that

“The Supreme Court’s decision means that the Court of Appeal’s acquittal

cannot be considered indicative. Instead, the Supreme Court judgment of

2004 is still indicative. The legal situation has not changed.”

Advocates are extremely unhappy. Although lower courts can still take notice of ‘Risk of HIV transmission from patients on antiretroviral therapy: A position statement from the Public Health Agency of Sweden and the Swedish Reference Group for Antiviral Therapy‘ (aka the ‘Swedish statement’) in future trials for people with HIV on successful treatment, this was a lost opportunity to modernise the application of the law from the highest court in the land.

An editorial by Oisín Cantwell in Monday’s popular newspaer, Aftonbladet, spelled out exactly what this means.

The fear of AIDS will survive 

The Supreme Court had a chance to make up with the judiciary outdated

views on HIV. But a new decision means, unfortunately, that people

will continue to be convicted of crimes they did not commit.

The Court of Appeal for Skåne and Blekinge last year acquitted a man

living with HIV and who had had unprotected sex with four different

women [all of whom] did not become infected.

The district court had sentenced him to one year in prison, but the

Court of Appeal brought in the opinion of the [Swedish] Centre for

Disease Control and allowed a professor to testify.

According to both the CDC's expert statement and the professor,

the [HIV transmission] risk during vaginal sex is very low.

The Court of Appeal found that since the man was well-managed on

medication  "the probability that the intercourse to which the charge

relates would result in the transmission of HIV was so small that

no real danger can not be considered to have existed."

Thus, there was not any crime.

Courageous verdict

The verdict was courageous and progressive: the lawyers listened to

some of the world's most skilled and knowledgeable researchers

in the field and took a decision that could lead to scientific

criteria forming the basis of when prosecutions should be instituted

in cases related to HIV.

The Prosecutor appealed to the Supreme Court to see if it would

stand up and be the guide. Now the Supreme Court's curt decision

has been reached, the case is not addressed. This means on one

hand that the Court of Appeal's ruling is upheld.

The man is innocent.

But the Supreme Court writes, in addition, that a ruling from

2004 still applies in practice.

Very unfortunate

That case concerned a man who had had a significant number of sex

with ten men [all of ] whom were not infected. He was sentenced

to one year in prison for reckless endangerment.

That this judgment will in the future be the guiding principle

is very unfortunate. It was reasonable when it was delivered,

but in the ten years that have passed since then, research has

made great progress.

Today's medicine allows those living with HIV on successful

treatment are simply not infectious. In addition there is now

much better knowledge of the risks than then.

In other words, its no sensation that Jan Albert, Professor of

Infectious Disease at the Karolinska Institute, is surprised

that the Supreme Court still drags out the old judgment.

The consequence: stigma remains 

What, then, will be the consequence of the decision?

The 1980s horror of AIDS will live on in the courtrooms

and help maintain the future stigmatisation of those with HIV.

It is perfectly understandable that people become terrified

when they find out that they have had unprotected sex with

someone with HIV.

But this fear that is based on ignorance.

No need to disclose

In its recommendations, the National Board writes that a doctor

can now make their own judgment about whether their patient need

to inform their [sexual] partner that they are living with the virus.

Of course it will still be a crime to not adhere to treatment and,

therefore, expose others to risk. But those who take their HIV

seriously, which a substantial majority do, for obvious reasons,

do not commit a crime when they have sex.

That people may be sent to jail for something they have not

done wrong is deeply offensive.

Something tells me that the judgement also means that

the huge amount of legitimate international criticism that

has been leveled against Sweden, as one of the countries with

the greatest zeal for HIV-related crimes, will not end.

Stockholm Court of Appeal finds successful treatment grounds for acquittal

However in June, the Stockholm Court of Appeal found that a woman living with HIV could not be held criminally liable for reckless endangerment when she was on successful antiretroviral treament.  Instead they sentenced her probation and a 5000 kronor (€550) fine for reckless endangerment for having condomless sex with a man (who was aware of her status).

The ruling was reported in Allt om juridik on June 11th.

An HIV-positive woman indicted for repeated unprotected sex

with a man was acquitted entirely in the District Court.

A divided Court of Appeals has now made a somewhat different

assessment, sentencing the woman to probation and a fine.

A man reported a woman to the police and claimed that she had

unprotected sex with him without telling him that she was infected

with HIV. The woman was charged with attempted aggravated assault

as well as reckless endangerment.

At the trial the man changed his mind and said that he knew about

the woman's HIV infection before the first sexual intercourse,

but made a police report because of jealousy.

The District Court noted that during the unprotected intercourse

there had been some, but not significant, risk of HIV transmission.

The Court also found that the defendant "harbored warm feelings"

for the man, supported by the fact that she completed intercourse,

trusting that any transmission of infection would not happen.

Therefore, it was not established that the woman had the

intent to transmit HIV infection, and the indictment for

attempted aggravated assault was dismissed.

Regarding the prosecution for reckless endangerment the District

Court held that the consent had an exonerating effect because the

risk of infection had not been as high. The Court stated that

the question of exonerating consent existed to be judged

by the severity of the risk and the risk that the danger would

be realised. The Court found that HIV infection is a very

serious disease. Unlike the District Court, the Court considers

that the risk of infection in this case was so high during

the period when the woman was untreated for HIV infection,

1 in 1000 through unprotected sexual intercourse, that the consent

did not have an exonerating effect. After the time woman began to

take antiretrovirals, there was a decreased risk of infection,

however, so that the consent could be deemed to be exonerating.

The woman sentenced thus for reckless endangerment only for the

period when she was not on antiretroviral drugs. The penalty

was determined to be probation and a fine.

Venezuela: National Assembly unanimously passes new rights-based law that protects people living with HIV from discrimination in all areas of life

On August 14th, the National Assembly (NA) of Venezuela passed a set of laws that, among other functions, ensure the rights of people carrying the Human Immunodeficiency Virus (HIV) and their families. The Law on Protection of People with HIV will aim to prevent discrimination and provide health care to AIDS patients as well as those who are HIV positive. “This law is born of the living history of these patients and family, who suffers discrimination he faced, he had no right to health, education, work, sport, recreation, housing, vehicle, and this law lay that story they told us the family and patients, “ said Vice President of the Permanent Commission for Integrated Social Development, Henry Ventura. (from http://lainfo.es/en/2014/08/14/venezuela-will-protect-people-with-hiv/)

The bill guarantees HIV-positive people equal conditions in terms of the right to work and hold public office, to education, healthcare, culture and sports, the benefits of social programmes, bank loans, confidentiality about their health status and respect for their prívate lives. It also states that having AIDS cannot be grounds for the suspension of paternity rights, while establishing that families are responsable for caring for and protecting people living with HIV.

The law guarantees equality for young people, because 40 percent of new cases are in the 15-24 age group. It also does so in the case of women, for whom it orders that special care be provided during pregnancy, birth and the postpartum period, as well as for people with disabilities and prisoners. The bill establishes penalties, disciplinary measures and fines for those found guilty of discrimination.

The idea is to prevent a repeat of situations such as one faced by a schoolteacher in a city in western Venezuela, who remains anonymous at her request. She was fired after a campaign against her was mounted by parents who discovered that she had gone to the AIDS unit in a hospital to undergo exams. However, the miliary and the police are exempt from the protective provisions against discrimination.

“We do not agree with that exception,” Estevan Colina, an activist with the Venezuelan Network of Positive People, told IPS. “No one should be excluded and we hope for progress on that point when parliament’s Social Development Commission studies it and it goes to the plenary for the second debate,” which will be article by article.

Nieves is confident that the second reading will overturn the military-police exception. But more important, said the head of ACCSI, “is the positive aspect of the law, starting with the unanimous acceptance of a human rights issue by political groups that are so much at loggerheads in Venezuela’s polarised society.”

The law, which NGOs and activists expect to pass this year, will give a boost to anti-AIDS campaigns. The support will be similar in importance to that given by a July 1998 Supreme Court ruling that ordered public health institutions to provide free antiretrovial treatment to all people living with HIV.

Criminal prosecution of HIV transmission – HIV Media Guide

Regardless of the merits of individual cases, criminal prosecution of people for exposure or transmission of HIV is considered by some commentators to be problematic because prosecutions:

Outrage HIV Justice Film Festival debuts at AIDS 2014 in Melbourne, first ever film festival to focus on HIV criminalisation

In the lead-up to AIDS 2014, ten powerful thought-provoking films from seven countries over three days (18, 19 and 21 July 2014) will outrage Melbourne film-goers by exploring how laws and policies aimed at controlling, punishing or disempowering specific groups of people living with, or at risk of HIV, harms not only human rights, but also the broader response to the HIV epidemic.

Curated by international HIV activist Edwin Bernard, co-ordinator of the HIV Justice Network, the Outrage HIV Justice Film Festival is presented in partnership with ACMI (Australian Centre for the Moving Image), Victorian AIDS Council and Living Positive Victoria.

The Outrage HIV Justice Film Festival includes four themed sessions: Women’s Injustices; Challenging HIV Criminalisation; Australian Responses to HIV Injustices; and Activism Against HIV Injustices.

“As the AIDS 2014 ‘Melbourne Declaration’ shines a spotlight on HIV injustices at the conference, the Outrage HIV Justice Film Festival‘s films, director Q&As, and panel discussions, will reveal the real stories behind the stigmatising mainstream media headlines, hopefully changing hearts and minds so that people understand why it’s important to advocate for change,” says the festival’s curator, Edwin Bernard, whose HIV Justice Network campaigns for an end to inappropriate uses of criminal laws to regulate and punish people living with HIV.

The Outrage HIV Justice Film Festival includes films never seen before in Australia and visits countries as diverse as Canada and Cambodia. “I hope that the sophisticated Melbourne cinema audience will be interested in challenging themselves to learn more about the forced HIV testing and imprisonment of a group of disenfranchised women in Greece, who were scapegoated by a cynical government trying to win votes in the 2012 election (in Zoe Mavroudi’s ‘Ruins: Chronicle of an HIV Witch-Hunt‘) or the harrowing impact of state-sponsored homophobia on the lives gay men and women in Jamaica (in Micah Fink’s ‘The Abominable Crime’),” says Edwin Bernard.

Other HIV criminalisation-related films include Positive Women: Exposing Injustice (Canada, 2012); Mark S King: HIV Criminalization Face-Off (US, 2012); HIV is Not a Crime (US, 2011); and How could she go on living as if weren’t there (Sweden, 2010).

“After each screening we’ll also be hearing from the film-makers themselves, many of whom are coming to Melbourne to talk about why they were outraged enough by these HIV injustices to make these films,” notes Bernard, whose own film ‘More Harm Than Good‘ is showing alongside three other short films that explore why a criminal justice approach to HIV prevention is hurting the HIV response.

“The moving image is a powerful expression of human experience. Through a diversity of perspectives, opinion, ideas, stories and images, the moving image helps us make sense of ourselves and our world through dynamic social, cultural and creative exchange. We’re delighted to have worked with our partners to present a compelling programme of cinema and talks focused on such a critical and important issue”. Helen Simondson, ACMI Public Programs Manager.

“This festival will, for the first time in Melbourne, bring together activist voices from around the world showing powerful work that highlights the injustice of HIV related discrimination,” says Simon Ruth, Chief Executive Officer of the Victorian AIDS Council. “Through documentary and drama, the diversity of the films is compelling, moving and ultimately inspiring.”

Punitive laws and policies aimed at controlling, punishing or disempowering specific groups of people living with, or at risk of HIV, is a hot topic and central theme of AIDS 2014, the much anticipated meeting of the International AIDS Society and largest international conference ever to be held in Melbourne.

“HIV justice is a key issue for people living with HIV in Melbourne as it is in many places around the world where even worse laws exist. Victoria still has punitive laws in place that we are fighting to have repealed. Outrage HIV Justice Film Festival takes advantage of AIDS 2014 to bring broader awareness of the damaging impact of unfair laws about HIV,” says Brent Alan, Executive Officer of Living Positive Victoria. “I hope as many Victorians as possible take advantage of the marvellous programme Edwin has curated to be presented in Melbourne’s home of cinema, ACMI.”

For more information and bookings visit www.outragefilmfestival.com or http://www.acmi.net.au/justice-film-festival-2014.aspx.

MEDIA ANNOUNCEMENT – Outrage HIV Justice Film Festival 18-21 July 2014

Flat funding, harsh laws could hurt Uganda's battle against HIV

KAMPALA, 25 June 2014 (IRIN) – Inadequate funding coupled with harsh laws targeting same sex unions could erode the gains so far made in the fight against HIV in Uganda, activists warn.

The AMA Adopts a Resolution Opposing HIV Criminalization

The Center for HIV Law and Policy is a national legal and policy resource and strategy center working to reduce the impact of HIV on vulnerable and marginalized communities and to secure the human rights of people affected by HIV.

HIV Criminalization: A Physician's Perspective

This essay is an excerpt from the LGBT/HIV criminal justice report, A Roadmap for Change: Federal Policy Recommendations for Addressing the Criminalization of LGBT People and People with HIV. His name was Paul. I slid into the chair next to him in my examination room to console him as he cried.

HIV is not a Crime 2014 – the first HINAC aka The Grinnell Gathering (My Fabulous Disease, US, 2014)

Mark S. King (My Fabulous Disease) reports from the first HIV is Not a Crime conference, held in Grinnell, Iowa in 2014 in a moving video that includes interviews with people living with HIV who have been prosecuted.

US: On eve of national HIV criminalisation conference Iowa's remarkable advocacy success is the model for other states to follow

If Gov. Terry Branstad signs Senate File 2297 on Friday as planned, Iowa will become the first state in the country to repeal and replace its criminal transmission of HIV law, activists say.

The law being reformed had been on the books since 1998. A broad coalition of groups, led by the Community HIV and Hepatitis Advocates of Iowa Network (CHAIN), has been working for the past five years to modernize it.

Advocates said the new law better reflects advances in science, medicine and understanding of how HIV is transmitted.

Until now, Iowa has had one of the harshest HIV transmission laws in the country. Under the 1998 law, persons with HIV could face 25 years in prison and inclusion on the sex offender registry if they could not prove they disclosed their status to a sexual partner — even if no transmission occurred and precautions such as condoms were used.

Under the new law, there is a tiered penalty system, which takes into account whether a person took precautions, whether transmission of HIV actually occurred and whether or not the person intended to transmit HIV.

The new law also adds other infectious diseases to the bill such as hepatitis, tuberculosis and meningococcal disease, which causes meningitis — so the law is no longer HIV-specific.

Finally, it removes the requirement those convicted register as sex offenders, and it will allow people convicted under the old law to be expunged from the registry.

Both the Iowa House and Senate unanimously approved the bill this year, a stark contrast to the four previous years, when similar bills languished in the legislature.

“You have to be in it for the long haul. It’s not an easy process,” CHAIN community organizer Tami Haught said of the group’s lobbying efforts. “We’re still dealing with a lot of the stigma that was around in the ’80s.”

She said when activists set out to change the law five years ago, they hoped to simply see the criminalization law repealed. But that wasn’t palatable to some lawmakers and county prosecutors, who said they still wanted to hold people with HIV accountable for protecting their sexual partners.

Finding ways to compromise was key to getting the sweeping bipartisan support needed, Haught said. Other tactics included meeting frequently with lawmakers, engaging in community education and gathering as many organizations to voice their support as possible.

CHAIN partnered with groups ranging from the Iowa Attorney General’s Office and the Iowa Department of Health to the League of Women Voters, the Family Planning Council and the Interfaith Alliance.

“We were up at the capitol almost every day it was in session talking with legislators. and that’s what needed to happen,” Haught said. “In 2014, maybe there was only one legislator who was not familiar with the law. When we started, a majority of legislators didn’t even know the law existed.”

NATIONAL ACTIVISTS LOOK TO IOWA

CHAIN’s tactics will be on display next week. The changes to Iowa’s law made national news, and activists hope to replicate those efforts in other states.

National group the Sero Project, founded by Iowa City native Sean Strub, is organizing a conference, HIV Is Not a Crime, to be held in Grinnell starting on Monday of next week.

Numerous laws similar to Iowa’s were passed in different parts of the country in the late 1990s in the wake of a high profile 1996 incident in New York. In that case, a man was charged with intentionally infecting 13 women and girls with HIV.

Additional pressure came from the federal government, which at the time required states to have an HIV transmission law on the books to access federal funding for HIV prevention and treatment through the Ryan White Comprehensive AIDS Resources Emergency (CARE) Act.

Today, there are 34 states with a HIV-specific criminalization on the books. Only two had harsher penalties than Iowa. Now, Iowa has become a model for how change could happen elsewhere.

When they started work on the conference, organizers were hoping for perhaps 50 people to attend. As of earlier this week, more than 170 activists from across the United States and four other countries have signed up to spend June 2 through 5 to learn and share lobbying and education techniques related to HIV transmission decriminalization.

“We wanted to bring advocates to one place and give them the tools to go home and try to modernize the laws,” Haught said.

Foremost of those tools should be a willingness for people living with HIV to share their own stories, she said.

“We need to speak up and show we are your neighbors, your friends, your family members,” she said. “Sharing our stories had a great impact on legislators.”

Some of those who has shared their stories include Iowans convicted under the 1998 law. One of those is Donald Bogardus, 43, of Waterloo.

GETTING HIS LIFE BACK

Bogardus was convicted under the old law after authorities said he had unprotected sex with a man three times in 2009.

The man didn’t contract HIV. Bogardus had an undetectable viral load, which means the virus could not be detected in his blood.

People with an undetectable viral load have almost no chance of transmitting the virus. The new law takes that into consideration when sentencing — the old law did not.

“It was not my intent to hurt him by far,” Bogardus said in a video the Sero Project made to tell his story. “The reason I didn’t disclose was I was afraid of rejection. I was afraid of being talked about. I was afraid of losing a friend.”

He spent two months in prison — he was facing 25 years — before receiving a suspended sentence in February, with two to five years of probation. He also had to register as a sex offender, which meant he lost his job as a certified nursing assistant at Country View, a Black Hawk County-owned nursing and mental health care center.

Now that his name will be taken off the registry, effective July 1, he’s hopeful he will be able to return to his old job.

“It has lifted a burden off of me. I’m just being able to get my life back,” he told The Gazette. “I felt like I was in a big cage, and now I feel some relief.”

He also believes the changed law will encourage more people to get tested in the first place because, under the old law, the only defense was not knowing you were HIV positive. The new law also encourages behavior public health officials are pushing, Haught said.

“Now we are incentivizing doing the right thing. If you are taking your medication and using protection, you can’t be prosecuted,” she said.

She said she wants HIV to be treated just as any other communicable disease.

“We’re hoping this will help reduce the stigma associated with being HIV positive and encourage testing and treatment,” she said.

Read more: http://thegazette.com/subject/news/new-hiv-transmission-law-makes-iowa-model-for-nation-20140529#ixzz33CDVnzKV